1945 Present: Cannon and Canekeratne JJ.

DIAS, Appellant and WICKREMESINGHE, Respondent.

105-D. C. Ratnapura, 7,327.

Co-owner-Improvement made by him-Sale of improved portion-Purchaser'? right to claim compensation in partition action-Waste Lands Ordinance, s. 4 (1)-Order made under-Cannot affect rights of improver.

Where a co-owner planted a portion - of the common property with rubber with; the acquiescence of many of the other co-owners and sold it-

Held, that the purchaser could obtain compensation in a partition action on the same footing as a bona fide improver.

Held, further, that a settlement order made under section 4 (1) of the Waste Lands Ordinance of 1897 (as amended by Ordinances of 1899, 1900, and 1903) cannot take away from an improver of property any right to compensation in respect of improvements he might otherwise have had.

APPEAL from a judgment of the District. Judge of Ratnapura.

N. Nadarajah, K.C. (with him E. B. Wikremanayake and H. Wanigatunga), for the defendant, appellant.

H. V. Perera, K.C. (with him U. A. Jayasundera), for the plaintiff, respondent.

Cur. adv. vult.

July 27, 1945. CANAKERATNE J.-

One G. K. Jayasinghe Bandara appears to have been entitled to two fifth shares of certain lands appertaining to Handukande Nindagama; in August, 1907, he made a gift of the same to his six daughters, RATNAYAKE Menike, Hamumahatmaya, Tikiri Menike, Punchi Menike, Dhanasekere Menike and Keerthi Menike.

In December, 1921, a Special Officer appointed under the Waste Land Ordinance of 1897 (amended by Ordinances of 1899, 1900 and 1903), published a notice under section 1 of the Ordinance calling upon persons claiming any rights in the lands commonly called and known as Batalawattehena, Kekunagalahena, &c, situate in the village of Kiriella (in extent 429 acres 1 rood and 19 perches, and shown as lots 95,107,121 and 131 in B.S.P.P. No. 182) to make claim to them or any of them within three, months from the date mentioned therein and stating that if no claim was made he would declare the same to be the property of the Crown. Robert Aron Goonetileke (later referred to as Robert), husband of Ratnayake Menike, on behalf of the six donees made claims to the Settlement Officer. The Settlement Officer inquired into the claims to the lands: he apparently did not admit these but instead he, on April 24, 1923, entered into an agreement with Basnayake Menike as authorised by section 4 (1) of the Ordinance. This agreement (P7) was to the effect that Ratnayake Menike in consideration of her sisters and her daughter, Amelia Goonetileke, being declared in equal shares, i.e., one-sixth share each, the owners of 80 acres more or less of lots 95, 107, 121 and 131 in B.S.P.P. 182, Kiriella, as shown roughly at 144A on the sketch, thereby withdrew all claims to the remainder of lots 95, 107, 131 and the whole of lots 9, .16, 41, 64, 71 and 251 in the said land and thereby also acknowledged that she had no further claim to the lands appearing in the notice.

Agreements in similar terms were entered into by Punchi Menike on March 16, Keerthi Menike on March 21, Dhanasekere Menike on March 31, Hamumahatmaya on April 23, and Tikiri Menike on May 16.

The order made under section 4 (1) on November 15, 1928, was published on December 21, 1928: it sets out the agreements entered into with the six claimants and declares the second, third, fourth, fifth and sixth claimants along with Amelia Goonetileke (the plaintiff who is now married) to be owners in equal shares, i.e., one sixth share of portions of the land more fully described therein (lot 95K Handukandewatta, Batalawattehenyaya, 95o Handukandewatta, 107AO Vedagewattehenyaya, 107AP Handukandehenyaya, 107AQ Kirigahatulehena, 121 Horamandiya, 131 Galagederawattehena): in extent 81 acres 2 roods and 13 perches, less the extent of 2 acres 3 roods and 0 perches.

Robert appears to have taken a portion of the l